Mon | Nov 19, 2018

Gordon Robinson | Chief injustice!

Published:Sunday | February 4, 2018 | 12:00 AM

Recent events highlighted the importance of a senior attorney-at-law with expertise and experience in constitutional law as the Government's legal adviser. The current attorney general seems to have her heart in the right place and is certainly putting out her best.

In my opinion, it's just not good enough, and nowhere was this more starkly exposed than in the matter of the appointment of a new chief justice.

First, the learned attorney general couldn't have chosen a more inappropriate time or place to make a public announcement of the chief justice's identity. She elected (no pun intended) to do so during a ceremonial full sitting of the Supreme Court in tribute to retiring chief justice, Zaila McCalla. Of course, a large contingent of Bar, family members, VIPs, visitors and media were also present to celebrate Chief Justice McCalla's exemplary career. It seemed, the impulse to take advantage of free publicity was irresistible.

Putting aside (for a moment) the awkwardness of the venue, the loud and sustained applause that greeted the announced appointment (not the announcement) would've sent a loud and clear message to those of us who were undervaluing the prime minister's ability to make the right choice. On December 3, 2017, my public critique ('Principle or ulterior motive') of an unprecedented call by the Jamaican Bar Association (JAMBAR) for the PM to subvert our present constitutional arrangements for the appointment of a chief justice, included the following:

"Exactly how many Jamaican jurists would JAMBAR propose be considered for the post? Five? Ten? Twenty? A hundred? What makes JAMBAR believe THIS prime minister, as opposed to all others before him, isn't considering ALL qualified jurists and consulting within and without the professional associations without subjecting applicants for such a sensitive judicial post to public scrutiny or contempt as the Constitution specifically mandates? Why is THIS prime minister told that he's incapable of handling a national obligation that's been handled capably and without demur by every prime minister before him finding himself or herself in a similar situation?"

 

Unanimous approval

 

The practically unanimous approval of the choice made by an obviously consultative process undertaken by the PM proves that JAMBAR's earlier concerns were unfounded and ill-informed. It's precisely this sort of premature adjudication why not all lawyers can be judges.

But the immediate reaction of joy and acceptance suddenly changed to stunned silence as it sunk in that, hidden behind the attorney general's announcement, was that the appointment was planned to be made under Section 99 of the Constitution "until further order" which would turn the new chief into an artiste auditioning for an Oscar.

Section 99(1) of the Constitution reads, in essence:

"99(1) If the office of chief justice is vacant or if the chief justice is for any reason unable to perform the functions of his office, then, until a person has been appointed to that office and assumed its functions or, as the case may be, until the chief justice has resumed those functions, they shall be performed by such other person ... as the governor general, acting in accordance with the advice of the prime minister, may appoint for that purpose by instrument under the Broad Seal."

I'm somewhat disappointed, but not surprised, at the number of young counsel whose experience with constitutional law must be limited, who have rushed to publicly declare that the appointment of an acting chief justice upon the retirement of the previous office holder is provided for in the law. In my opinion, it is not.

We should look carefully at the words "If the office of Chief Justice is vacant or if the chief justice is for any reason unable to perform the functions of his office ..." and read them in the context of our entire judicial framework as structured in the Constitution. Section 98 provides for the appointment of a chief justice without restriction and Section 100(1) [subject to the ability to appoint an acting judge but not to the power to appoint an acting chief Justice AND to ways to remove judges] provides that all judges retire at 70.

So, from the moment a chief justice is appointed, subject always to life's vicissitudes, it's certain knowledge exactly when that chief will retire. There's no need whatsoever to include a provision beginning with the word 'if' that's intended to apply upon retirement. That's not an 'if'. It's a 'when'!

Sometimes, when interpreting law of any kind, what's not said is as important as what's said. Section 99(1) does NOT provide "upon the retirement of a chief justice or if the office of chief justice is vacant or if the chief justice is for any reason unable to perform the functions of his office ... ." Taken together with the fixed date for retirement, this strongly suggests Section 99(1) didn't contemplate application to a chief's retirement.

But let's look at it even more closely. It appears to be making provision for occasions when a current chief justice is "... for any reason unable to perform the functions of his office", so the REAL purpose of the subsection is to ensure an acting chief can be appointed to fill a gap, so to speak. The words "If the office of chief justice is vacant ..." would then be a more forensic, less insensitive, method of providing for the death or sudden resignation of a sitting chief justice before retirement age.

The rest of the provision, "... or if the chief justice is for any reason unable to perform the functions of his office", would cover illness, vacation, visits to overseas sick relatives, and the like. The correct interpretation of Section 99(1), in my opinion, is what lawyers would call "ejusdem generis" (the list should be generic and not include items outside the category of those listed).

The categories intended to be listed appear to deal with scenarios where an acting appointment is REQUIRED because there's still an appointed chief who can't perform, whether by death (sensitively expressed), illness or other similar "absences". The key words here are that, even where 'vacant" is used, that situation is also governed by the concept of a chief justice who "is for any reason unable to perform the functions of his office" (because the office is vacant or "for any reason").

The separation of reasons is because death and resignation are distinctive, different and more final types of reasons requiring temporary appointment, but the overall purpose is to fill a vacancy during the tenure of an appointed chief who can't perform his/her duties. There's no way a chief wouldn't be able to perform because of retirement since upon retirement he/she is no longer chief!

There's a clear separation in the Constitution of the power to appoint a chief justice and the power to appoint an 'acting' chief, and the reasons specified for the exercise of the power to appoint an acting chief do not, in my opinion, include the retirement of a chief justice. Certainly, that basis for an acting appointment seems reserved for puisne judges (who, unlike the chief, can themselves 'act' in other posts, e.g., in the Court of Appeal or as chief justice, which would mean a status change and an interruption in the tenure of the office as puisne judge), as Section 100 guaranteeing tenure until 70 is made subject ONLY to the provisions for appointing acting puisne judges, NOT acting chief justices. This means, taken as a whole and upon a deeper analysis of Section 99(1), the temporary appointment of Justice Bryan Sykes as chief justice may well be unconstitutional.

What stands in the way of his permanent appointment? It can't be, as PM may have inadvertently implied, "performance", because that would place the PM, constitutionally permitted only to appoint, as a job evaluator. This, if actually attempted, would be an egregious excess of constitutional authority and a severe injury to the constitutional principle of separation of powers.

On a practical level, it would be close to impossible to do a proper evaluation, in the current circumstances, for years while the Chief Justice, head of an independent judiciary, under the thumb of a justice minister who has already proven he's not shy in flexing his ministerial muscles to the detriment of citizens' confidence in the judiciary.

I'm certain the PM meant no such consequence to his ad hoc remarks at an unusually private ceremony for the swearing-in of the new chief justice and will ensure that Justice Sykes is permanently appointed as soon as the administrative details for same are complete. It was reported that his interview for the appointment took place on Tuesday morning, which might be the administrative reason for the acting appointment on Thursday. Let's hope so.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.